What the VA Must Do to Help Develop Your Case for Disability
The VA must help you gather evidence to support your claim for veterans disability benefits.
If you've applied for veterans disability benefits, you have the right to receive assistance from the Department of Veterans Affairs (VA) to help you with your application and gather evidence to support your claim. Most other federal agencies don't have to provide this sort of help to applicants, but the VA does.
The Veterans Claims Assistance Act of 2000 (VCAA) details the VA's duties to assist veterans with benefits claims. These duties are discussed below.
Notify Veteran of What's Needed to Complete Application
If you submit an application and it is incomplete, you have the right to be notified of the information that is needed to complete the claim. For instance, if you apply for service-connected disability compensation but don't provide any information about the in-service incident that you believe caused your disability, then it is the duty of the VA to send you a letter and explain how to complete your application. Or if you didn't provide a statement about the post-traumatic stress disorder "stressor" that you experienced in the service, the VA is required to request this statement from you.
If you make a simple error like forgetting to sign your application, the VA needs to let you know you need to sign it before it can be processed. This prevents the VA from simply rejecting your application and telling you to start all over and submit a brand new application.
Consider All Claims Raised by Evidence Submitted
The VA has a duty under 38 U.S.C.S. § 7104(a) to consider all possible claims for compensation that are raised by the medical evidence in your record. This means that even if you don’t claim a specific disability, such as hearing loss, if there is medical evidence in your file about hearing problems and exposure to loud noise during service, the VA has a duty to evaluate whether you are entitled to compensation for hearing loss.
For this duty to arise, there must be some reasonable evidence in your file about the disability and about some incident in service that may have caused it.
Likewise, if your doctor has stated that you are unable to perform any work at all, and this statement is written in your records (not just verbally stated to you), the VA is required to evaluate whether you are entitled to a 100% disability rating based on Total Disability for Individual Unemployability (TDIU). If the VA does not do so, this can be grounds for an appeal.
Notify Veteran of Evidence Needed to Prove Disability
If you submit an application for disability benefits that is largely complete, you are entitled to receive a notification from the VA about any evidence that is needed to prove your medical condition is a service-connected disability, in addition to what you already submitted. Also, the VA must be very clear in this notification about the records the agency will seek to obtain on your behalf and the records you must try to get on your own.
Duty to Help Gather Evidence
The VA is obligated to help gather needed evidence to prove your claim unless there is almost no chance at all that your claim is legitimate. What this means is that in most cases, the VA has a duty to make efforts to obtain records for you.
Help Obtaining Records
The VA is required to help you obtain records from both government sources, such as VA Medical Centers, and from private doctors or hospitals where you received treatment. If you are making a claim for disability compensation, the VA must help you obtain service medical records as well as VA medical records.
The VA can’t just try once and give up if the records are not produced; the agency must keep trying to obtain the records. The VA can only stop trying to get the records for you if it seems like the records don’t exist or no reasonable effort will produce the records. If the VA fails to obtain some of your records that are needed to support your claim for benefits, the agency is required to notify you of this fact.
Provide Medical Examinations and Opinions
You are entitled to be provided with a medical examination or medical opinion by the VA whenever your medical evidence includes:
- a medical diagnosis of a current disability
- evidence of symptoms that are ongoing or recurrent (this can be medical evidence or lay evidence, meaning statements from you and/or your family or buddies), and
- there is at least some indication that your symptoms or disability might be related to your military service and the VA doesn't have enough medical evidence in your file to issue a decision.
Your right to a medical exam or opinion (as established by the criteria above) includes the right to:
- a comprehensive medical exam
- a visit to a medical specialist when this has been recommended by a VA doctor, and
- the procurement of an independent medical opinion if two doctors disagree about your disability
Importance of Showing up for a Medical Examination
If the VA schedules you for a medical examination to help substantiate your claim for benefits, you must go to this examination. If you have filed an initial claim for benefits and you do not show up, your claim will be decided based only on the evidence the VA already has. But if you have requested an increase in your disability rating or are seeking to reopen a previous disability claim, and you do not show up for the medical exam, your claim will be denied.
This will be true unless you can show "good cause" for why you were absent. Good cause would include an illness or the death of a family member, as well as other extenuating circumstances.
What if the VA Fails to Meet These Duties?
If the VA fails to meet any of the above duties to which you are entitled, this can be grounds for an appeal of a denial of VA benefits. It can be very helpful to have an attorney to assist you in an appeal. For information on locating an attorney in your area, read our article on hiring a veterans law attorney.